IOC Rule 45 Amendment Needs Amending

Column by Jason Marsteller

PHOENIX, Arizona, June 3. LAST summer, the International Olympic Committee amended Rule 45 of its rules regulating participation in each of the Olympic Games. The new addition states that anyone being suspended for more than six months for a doping-related offense would also be banned from the Olympic Games following the conclusion of the suspension.

The IOC decision came down prior to the U.S. Olympic Swimming Trials, and became effective July 1, 2008. Looking back into the environment that produced such a ruling, one can only look at the doping issues that have run rampant in the sports such as Track and Field and Cycling.

The entire point of creating a system of deterrence is to create a punishment so bad that it deters someone from an infraction. While Swimming has not been 100 percent clean as a sport, it certainly has been impacted by the level of deterrence created by the IOC and the World Anti-Doping Agency.

However, a sport like Track and Field has routinely ignored any international deterrence as the sport has allowed doping to become ingrained in the very fabric of the sport. So much so that a superstar like Olympic gold medalist Marion Jones admitted to doping.

It could be argued that the IOC felt that, among the backdrop of Track and Field's doping embarrassments, the organization had to ratchet up the heat and make the deterrence level even greater. One of the likely trains of thought within the IOC at the time was: If a two-year ban isn't going to stop someone from doping in Track and Field, then maybe a guaranteed miss of an Olympic Games would work.

I completely understand that train of thought, but disagree with the execution along with the blowback that such punishments create within other sports where doping is not so ingrained – swimming being one of them.

While Jessica Hardy is facing these issues in her attempt to get the Rule 45 amendment waived in her case, she's definitely not completely out of the woods just yet. She and supplement company AdvoCare, which the American Arbitration Association ruled provided a contaminated supplement to Hardy, will still have their day in court to make a final ruling on whether Hardy knowingly ingested a banned substance.

As it stands right now, Hardy was removed from the 2008 U.S. Olympic Team with her suspension running until the end of July 2009. Because the suspension was more than six months, she will not be able to attempt to compete at the 2012 London Olympics.

However, a much stronger case study can be made with Kicker Vencill, who has concluded his issues both publicly and legally regarding his doping ban.

Vencill originally drew a mandatory four-year ban from USADA for a positive test for steroid precursors in January of 2003, but did not begin serving the suspension until May 2003. At the time, USADA had a ruling where first-time steroid offenders were given an automatic four-year ban.

In an ironic move, WADA was in the process of taking full ownership of doping controls within the Olympic movement. WADA required that all national doping agencies fall into line with WADA's controls, which included an automatic two-year suspension for positive tests. The requirement reduced Vencill's ban from four years to two.

Vencill would later be vindicated in court when a jury in Santa Ana, Calif., ruled that Ultimate Nutrition caused the positive ruling as a multivitamin Vencill was taking was contaminated with three steroid precursors.

Vencill has since recovered his reputation among the swimming community, although his name is often used as a cautionary tale when it comes to what an athlete consumes.

Here's where a case study on the implementation of the new Rule 45 amendment comes into play. Vencill, who was suspended for two years in January 2003 but did not begin serving the ban until May 2003, finished serving his "strict liability" punishment for consuming something he should not have on May 21, 2005.

During this time, Vencill lost his chance to try to compete for the U.S. at the 2004 Athens Olympics as part of his suspension. For the sake of clarity, I do not believe in overturning the "strict liability" tenet, where an athlete is 100 percent responsible for anything consumed. However, here's where the rest of the currently implemented Rule 45 punishment structure doesn't make sense to me as applied to someone like Vencill.

Since Vencill's suspension ended in May 21, 2005, under current rules he would automatically be banned from trying to make the 2008 Beijing Olympics. That means that Vencill's positive test from January 2003, with a suspension beginning in May 2003, would have been a de facto five-year Olympic ban for Vencill. It could even be argued that the ban could be seen as a lasting nine years since, from the original point of suspension, Vencill would have been unable to even attempt to make an Olympic roster for nine years, resulting in a ban on two Olympics.

Within the United States judicial system, we have a concept called "double jeopardy". It means that you cannot be punished or tried for the same offense more than once. If you are ruled innocent of something, you don't ever have to worry about that alleged offense coming back to haunt you again. Additionally, if you are found guilty for a single offense, you cannot be given an additional sentence over and above your single punishment for that specific infraction.

While I understand that the International Olympic Committee is – international – there are certain tenets of the justice system found within the U.S. that I believe are universal. One of which is that once someone has served their time, you allow them a legitimate shot to return to their society.

Rule 45's Olympic doping ban completely violates the "time served" concept. Anyone serving more than a six-month ban is not allowed to serve their time and return to the swimming society, where the Olympics are held up as the summit of the sport.

If the IOC wants to hold the Olympics up on the pedestal of punishment, then why doesn't it just ban those suspended for doping up through the last day of the upcoming Olympics, whether it be six months or four years? At least the punishment would be clear.